LOUISVILLE, Ky. -- Kentucky's highest court has reversed an intermediate appellate court order, holding that a trial court was correct when it found that jurors had gone against the weight of the evidence when not assigning liability to parties who did not participate in trial. Certainteed Corp., v. Dexter, et al., No. 2008-SC-000886-DG (Ky. Sup. Ct.).

In the Dec. 16 opinion, the Kentucky Supreme Court found that there was in fact sufficient substantial evidence to support a finding against the empty-chair defendants at trial.

"This Court concludes that there was substantial evidence to support the trial court's ruling," the Supreme Court said. "[T]he evidence introduced at trial established that [the plaintiff] was exposed to asbestos manufactured by or used on the premises of other companies, that these exposures also caused his lung cancer, and that the companies knew or should have known about the dangers and failed to warn [the plaintiff]. Much of the evidence that support the jury's finding of liability against CertainTeed and Garlock (e.g., that of causation) was just as applicable to the empty-chair defendants. In addition to that evidence, other evidence related specifically to the empty-chair defendants was also introduced."

The underlying claims were brought by James G. Dexter, who claimed that his work as a pipefitter for nearly 40 years required him to work with asbestos-containing pipes, gaskets and insulation. Dexter, who was also a long-term smoker, was later diagnosed with lung cancer. The high court noted that his lungs contained a "substantial amount of asbestos fibers."

In his lawsuit, Dexter named 19 defendants, but only two remained at the start of trial. During trial, the parties introduced evidence that Dexter was exposed to not only asbestos in the products of the two remaining parties, but also the empty-chair defendants. The empty-chair defendants were also included on the verdict forms so that the jury could apportionment the companies a percentage of fault.

The jury, however, found in favor of the plaintiffs, awarding more than $5 million in damages and allocating 35 percent liability to Dexter, the plaintiff; 35 percent liability to Garlock; and 30 percent liability to CertainTeed. No liability was allocated to the empty-chair defendants.

Garlock and CertainTeed moved for a new trial, contending that the jury's failure to allocate liability to the empty-chair defendants was not sustained by the evidence. The trial court agreed, granting a new trial. In the retrial, the jury awarded $1.6 million and allocated 21 percent liability to the empty-chair defendants, while assigning 60 percent fault to Dexter, 17 percent to Garlock and 2 percent to CertainTeed.

The plaintiffs appealed, contending that the trial court erred when it granted a new trial. An intermediate appellate court agreed, reinstating the judgment from the first trial and prompting the instant review.

In addressing the defendants' appeal, the high court said that it will determine whether the reversal was correct and elaborate on what "quantum of proof is required before it can be proper to apportion fault to empty-chair defendants."

The court noted that despite the fact that an empty-chair defendant is not actually present during trial, the defendants that are at trial assume the role of proving liability on the empty-chair defendant that it claims should be liable.

"[T]he test for such a finding on appeal is whether there is substantial evidence to support that finding," the court said. "After reviewing the record, this Court concludes that substantial evidence to support the trial court's finding was introduced at trial. A plethora of evidence showed that Dexter was exposed to asbestos by many of the empty-chair defendants. Although much of this evidence was general in nature, some of it specifically identified manufacturers of asbestos used at the sites where Dexter worked and the sites themselves where he was exposed to asbestos."

Citing testimony from Dexter's former co-workers, Dexter himself, and defense expert Dr. Michael Graham -- who testified that the fibers in Dexter's lungs were a type that could not have come from either of the remaining defendants' products -- the court determined that there was ample evidence to suggest that Dexter was exposed to other asbestos products in a substantial degree.

The high court also noted that the intermediate appellate court found flaws with CertainTeed and Garlock's arguments at trial, finding that it was specific enough to implicate the empty-chair defendants. However, the Supreme Court held that despite not being as specific as evidence presented on behalf of the participating defendants, the evidence was "not so general or otherwise wanting that the trial court was 'clearly erroneous' in concluding that it required some apportionment."

"Although the evidence of exposure to the participating defendants was certainly more specific, we cannot say that the trial court was clearly wrong to conclude that the evidence of exposure here would be enough to require apportionment," the court said. "To some extent, the Court of Appeals' concern about the duration and intensity of Dexter's exposure goes more toward causation than mere opportunity for exposure. But these are slightly different concepts, and as discussed below, there were other, more specific evidence of legal causation."

The high court also found that there was sufficient evidence that each and every exposure to asbestos would contribute to Dexter's illness, therefore evidence of exposure to the empty-chair defendants' products "means that they must have legally caused some portion of Dexter's injuries."

The court also found that the there was sufficient evidence that the empty-chair defendants knew of dangers related to asbestos exposure and failed to warn Dexter.

In reversing the appellate court's decision, the Supreme Court remanded the case to the trial court for a determination on CertainTeed's cross-appeal of the second trial judgment and other remaining issues.

Counsel for the plaintiffs are Kenneth L. Sales, John Robert Shelton and Joseph Donald Satterley of Sales, Tillman, Wallbaum, Catlett & Satterley in Louisville, Ky.

CertainTeed is represented by Lisa Devillez Carter of Owen Carter & Carter in Benton, Ky.; Elizabeth Runyan Geise and William F. Sheehan of Goodwin Proctor, LLP in Washington, D.C.; and David C. Marshall of Hawkins Parnell & Young in Atlanta.

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